2102559 (Refugee)

[2021] AATA 3168

2102559 (Refugee) [2021] AATA 3168 (25 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2102559

COUNTRY OF REFERENCE:                   South Sudan

MEMBER:Penelope Hunter

DATE:25 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 25 May 2021 at 2:32pm

CATCHWORDS
REFUGEE – protection visa – South Sudan – imputed political opinion – supporter of President Kiir and Sudan People’s Liberation Movement (SPLM) – race – Dinka – left country of reference when an infant – limited language skills – limited knowledge of tribal or cultural heritage – lack of familial assistance – limited work experience – lack of accommodation – East African Community (EAC) – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 28, 29, 36, 65, 67, 68, 91P, 91R, 116, 499, 501
Migration Regulations 1994 (Cth), Schedule 2

CASES
AGA16 v MIBP [2018] FCA 628
FCS17 v MHA [2020] FCAFC 68
Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53
Suntharajah v MIMA [2001] FCA 1391

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 March 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant who claims to be stateless, applied for the visa on 19 January 2021. The delegate refused to grant the visa on the basis that the applicant was not found to be a person in respect of whom Australia had protection obligations.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

6. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)–(6) and ss.5K–LA, which are extracted in the attachment to this decision.

7. If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

8. In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CLAIMS AND INFORMATION BEFORE THE TRIBUNAL

9. The applicant is a [age]-year-old man born in [year] in Khartoum, Sudan. He left Sudan with his family while an infant and travelled to [Country 1]. While in [Country 1] the family were designated by the United Nations High Commissioner for Refugees (UNHCR) as refugees and [in] September 2005 he arrived in Australia with his family on a Class XB Subclass 200 humanitarian visa.

10. In his visa application form he set out that his ethnicity is African/Australian and that his religion is Christianity. He reads, writes and speaks English, and also speaks Arabic. He is engaged to an Australian citizen and has been in a relationship with his fiancée since 5 May 2017. He attended high school until the age of 17.

11. The applicant was charged with three offences in Australia in 2018, and sentenced to a term of imprisonment. The Tribunal has not itemised the offences and sentences as they are not material to the assessment of the refugee and complementary protection criteria.

12. On 25 October 2018 the applicant’s visa was cancelled under s.501 of the Act, on character and related grounds.

13. On 19 January 2021, the applicant lodged the protection visa application under review. The application form disclosed at that time he was being held in detention, at [Detention Centre 1].

14. In his application the applicant referred to the letter from his lawyer and set out the following claims:

    i.He had left Sudan because it was unsafe and there was no peace.

    ii.He was unaware of the consequences of returning to Sudan.

    iii.He thought he would be harmed or mistreated and suffer death if he returned to Sudan.

    iv.He did not think the authorities in the country could protect him due to corruption.

    v.He would not be able to relocate because he had no family or friends.

15. In a covering letter accompanying the applicant’s protection visa application, dated 18 January 2021, the legal representative for the applicant set out the following further claims:

    i.Consideration should be given to the dire humanitarian situation in South Sudan, particularly the congoing conflict, volatile security situation, poverty, crime and corruption as reported in various sources of country information.

    ii.Due to the ongoing conflict and difficulties in South Sudan, it would be impossible for the applicant to return to a country he has not been in since a child. His family were all in Australia and if he was to return to South Sudan, he would have no ability to reintegrate into a war-torn country where he had no contacts, no liveability prospects and no ability to look after himself.

    iii.The applicant’s formative years were spent in Australia he was fully integrated into Australian society and its community. He had gone to an Australian school, has maintained residence in Australia with his family since he was [age] years of age and is engaged to an Australian citizen.

16. The applicant was subsequently transferred to [Detention Centre 2]. He attended an interview with the delegate on 25 February 2021. The interview was conducted by telephone and in English. The applicant’s legal representative also participated in the interview. The applicant has provided to the Tribunal a copy of the delegate’s decision record. The Tribunal has reviewed the audio recording of the interview and is satisfied that the delegate has accurately recorded the information presented by the applicant at the interview. At the interview the applicant provided the following further information:

    i.He studied halfway through year 11 at high school in Sydney. He had worked occasionally at a [factory]. While in custody he had completed food handling courses, and worked in the kitchen for around five months.

    ii.He was of Dinka ethnicity. He can read, write and speak English. He can also read, write and speak some Arabic and speak some Dinka. He speaks to his parents in a mix of English, Arabic and Dinka. He did not know how to fully speak Dinka and it would be hard for him to communicate.

    iii.He feared returning to South Sudan because of the conflict between the Dinka and the Nuer people.

    iv.He would attend gatherings with the Sudanese or South Sydney’s communities in Australia. He also attended a church in Sydney which was attended by plenty of Sudanese families. He is a Christian.

    v.He fears there will be no jobs, no food and a lot of poor people in South Sudan. He did not know what would happen to him if he was returned to South Sudan as he had not been there and has no knowledge of the country.

    vi.He fears it would be hard to return to South Sudan without family and he hates being alone. Because he has no family in South Sudan he would not have any support network or anywhere to live. The only person he had was his grandmother and he believed that she passed away in 2019.

    vii.He fears that as a returnee from a western country, like Australia, without connections he would be at risk.

    viii.He fears his mother’s health would deteriorate if he was to return to South Sudan as the stress would negatively impact upon her. His mother’s liver is damaged from excessive alcohol use.

17. The legal representative for the applicant also made the following submissions to the delegate:

    i.The applicant and his family were deemed to be refugees by the UNHCR when they were living in [Country 1]. This classification is still in place regardless of the cancellation of the applicant’s visa.

    ii.South Sudan is a foreign country to the applicant as he has never been there.

    iii.It would be very difficult for the applicant to reintegrate into the community in South Sudan.

18. On 2 March 2021, the delegate found that they were not satisfied that the applicant met the requirements for a protection visa under ss. 36(2)(a) or 36(2)(aa) of the Act.

19. The Tribunal received an application for review from the applicant on 2 March 2021. With his application, the applicant submitted a copy of the delegate’s decision record.

20. On 15 April 2021 the Tribunal received a statement of issues, facts and contentions from the representative of the applicant. In this statement the following additional claims were made;

    i.Sudan is under a volatile situation, both security wise and humanitarian.

    ii.It was unclear as to whether the applicant is a citizen of Sudan or South Sudan.

    iii.There are no receiving third countries for Sudanese individuals who are unable to return to Sudan.

    iv.The applicant was given UNHCR refugee status, the details of that designation is unknown. The Australian government has not issued a cessation document in relation to cancelling the UN refugee designation of the applicant.

    v.The applicant has never lived in South Sudan. He and his family left Sudan during the war when he was a minor. He has also never travelled to Sudan or South Sudan since his family arrived in Australia.

    vi.The applicant does not have any remaining family members that reside in Sudan or South Sudan, neither does he have anyone he can rely upon for support. There are no other social, medical or economic supports for the applicant available in Sudan or South Sudan. If the applicant returned to Sudan or South Sudan, he had no means of earning a living and would have limited access to whatever services are available in those countries. His family do not have the capacity to provide financial assistance from Australia.

    vii.The applicant identifies as being from the Dinka tribe. He can speak some Dinka but identifies it as being “semi functional”.

    viii.The UNHCR Position on Returns to South Sudan demonstrates issue surrounding South Sudan and Sudan and its ongoing issues and conflict.

    ix.The applicant has lived in Australia for his formative years and fears to return to a country he has never experienced or been to.

21. The applicant appeared before the Tribunal via video link on 16 April 2021, to give evidence and present arguments. The applicant’s legal representative also participated in the hearing by telephone. The Tribunal also received evidence from the applicant’s fianceé, [Ms A]. At the applicant’s request, leave was granted for further submissions until 23 April 2021.

22. The applicant presented the following further relevant information at the hearing:

    i.He did not recall anything about Khartoum, his family had left Sudan before he turned two. In addition to his mother and father, he has [number] siblings in Australia. No one in the family has returned to Sudan or South Sudan. He does not know if he has any family in South Sudan or Sudan.

    ii.His parents separated around 2008/2009. The applicant said that things were pretty good for a few years when the family arrived in Australia, but his parents later had some problems with alcohol. There were issues with violence and their marriage broke down. The applicant said Family and Community Services were involved and some of his siblings were taken into care. In his later teenage years, the applicant lived with his elder sister, who attempted to provide a home for all siblings.

    iii.He said that he had attended several high schools, as his family moved several times. He did not complete year 11 because he found it hard and could not keep up.  

    iv.He had only ever been employed for a few months. His brother-in-law got him a job at a [factory]. He had also done some life skills courses while in prison.

    v.He has been to activities with the Sudanese community in Australia. They would have get togethers in the park. At these events they would speak English; the older people would speak mainly Dinka. With his parents he would speak a combination of English, Dinka and Arabic.

    vi.When asked what he knew of the Dinka people, the applicant replied only a little bit. He believed that being of Dinka ethnicity he would suffer harm from people of the Nuer ethnicity as there was a lot of fighting going on in South Sudan. When asked what he knew about the fighting, the applicant responded that there was a big war and people were killed. When asked to explain the difference between the Dinka and the Nuer, he responded that he did not really know and thought it was tribal. He did not know anything about the politics or political parties in South Sudan.

    vii.He believed that he would be harmed if he went to South Sudan, because the war was still going on. He could only speak a little Dinka and a little Arabic. He needed to have a support network to live in the country, and the economics in the country were not improving. He did not believe that his English skills would assist him to find employment because he struggles with reading and writing most of the time. He spoke to the Tribunal about his difficulties completing Departmental and other official paperwork. He believed this compounded his legal problems, one of his offences was a failure to appear. He also claimed that he could not put in an application to review the decision to cancel his visa as he did not understand the paperwork.

    viii.He would be targeted as a returnee from a western country as he would stand out. He knew of a friend of his fathers who was very educated and returned to South Sudan and he ended up being killed.

    ix.He would not know where to go if he went to South Sudan. He did not know anything about different areas of South Sudan and where it was safe. It was a completely different environment and he would not know their ways.

    x.His family would not be able to provide him with any financial assistance if he was in South Sudan. Everyone in his family is struggling. His mother had medical issues and she was reliant on Centrelink. His elder sister was supporting his younger brothers and sisters. His father was also living by himself, he could not rely on him and they were estranged.

23. Following a further request for leave, on 27 April 2021, the Tribunal received an additional submission from the representative for the applicant regarding the assessment of the applicant’s nationality pursuant to s.91P of the Act and claiming that the applicant remains stateless, and the application of the authority in Minister for Immigration Multicultural and Indigenous Affairs v QAAF of 2004 [2006] HCA 53, to the applicant’s circumstances. The contents of which will be discussed below.

24. In addition to the above the Tribunal has before it the following further documents submitted on behalf of the applicant:

    ·UNHCR Position on Returns to South Sudan – Update II, UNHCR April 2019

    ·Conflict, floods and COVID-19 push South Sudanese into extreme hunger, UN News 18 December 2020

    ·Violence in South Sudan engulfs country, 10 years after independence ‘children all have guns’, UN News 19 February 2021

    ·South Sudan Events of 2020, Human Rights Watch

    ·Humanitarian Needs Overview – South Sudan, Humanitarian Programme Cycle 2021, issued January 2021

    ·Letter of support by [Ms A] dated 22 January 2021

    ·Extract of Chapter III, The Nationality Act 2011 South Sudan.

    ·Minister for Immigration Multicultural and Indigenous Affairs v QAAF of 2004 [2006] HCA 53.

    ·COI Query, European Asylum Support Office dated 9 April 2020, Acquisition of citizenship in South Sudan: whether a person who has ever had a national South Sudanese ID and has never been registered as a national would be eligible for it.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Nationality

25. The applicant claims to be stateless. In submissions to the Tribunal received on 27 April 2021, the representative for the applicant has disputed the Departmental assessment that the applicant was to be assessed as South Sudanese due to the following:

    ·Both of the applicant’s parents are not citizens of South Sudan and do not claim as such, for this reason the applicant would not meet any requirement for citizenship by birth.

    ·The reason that the applicant’s parents claimed to hail from Aweil State is not known, this may have been part of the process of getting the application completed for travel to Australia.

    ·The applicant does not meet the 10 year residency requirement for South Sudanese citizenship.

    ·No application for citizenship has been made by the applicant for Sudan or South Sudan and there will never be an application made.

    ·There is no information that any application for citizenship of South Sudan would be successful in any event. It is argued that there is a lack of any proper population registration system in South Sudan

26. Section 91N(6) of the Act requires that nationality be determined solely by reference to law of that country. The applicant was born in Khartoum, Sudan in [year]. He left Sudan with his family while an infant and spent several years in [Country 1] prior to arriving in Australia as a dependant on his father’s Refugee (Subclass 200) visa. By way of identity documents the applicant has produced an untranslated copy of his family book and birth certificate. There is no evidence before the Tribunal or the Department that these documents are bogus or that the applicant has given a false identity.

1. The applicant claims to have never obtained a passport of any country. At the time of his birth the applicant’s nationality was governed by the Sudanese Nationality Act 1994. After approximately two decades of civil war, South Sudan became independent in 2011. Consequently, the Sudanese Nationality Act 1994 was amended in 2011 and further in 2018. According to the Sudanese Nationality Act 1994, the applicant can acquire Sudanese nationality through his paternal or maternal line. The visa application under which the applicant and his family were granted their Refugee (Subclass 200) visa, produced by the Department, records that both the applicant’s mother and father were born in Aweil State , which is now in South Sudan. A 2011 amendment to the Sudanese Nationality Act 1994, stipulates that Sudanese people automatically lose citizenship when they acquire ‘de jure or de facto” the nationality of South Sudan[1].

   [1] The Sudanese Nationality Act 1994', Citizenship Rights in Africa Initiative, 2018 amendments signed into law 30 December 2018, s.10(2) page 14, 

2. The Nationality Act 2011(South Sudan) is the relevant law for South Sudanese citizenship. Section 8 of the Nationality Act provides that:

   8. Eligibility Requirements

   (1) A person born before or after this Act has entered into force shall be considered a South Sudanese National by birth if such person meets any of the following requirements

   (a) any parents, grandparents or great-grandparents of such a person, on the male or female line, were born in South Sudan; or

   (b) such person belongs to one of the indigenous ethnic communities of South Sudan.

   (2) A person shall be considered a South Sudanese National by birth, if at the time of the coming into force of this Act-

   (a) he or she has been domiciled in South Sudan since 1.1.1956; or

   (b) if any of his or her parents or grandparents have been domiciled in South Sudan since 1.1.1956.

   (3) A person born after the commencement of this Act, shall be a South Sudanese National by birth if his or her father or mother was a South Sudanese National by birth or naturalization at the time of the birth of such a person.

   (4) A person who is or was first found in South Sudan as a deserted infant of unknown Parents shall, until the contrary is proved, be deemed to be a South Sudanese National by birth.[2]

   [2] 'South Sudan Nationality Act 2011', Government of South Sudan, 7 July 2011, s. 8

3. As set out above, both the applicant’s parents according to their Refugee (Subclass 200) visa applications were born in Aweil State, South Sudan. The applicant can acquire nationality of South Sudan from his parents. Although the representative of the applicant has raised queries as to the information provided by the applicant’s parents in their visa application that they were born in Aweil State, there is no evidence before the Tribunal that they provided bogus information as part of the original visa application. Further, the circumstances leading the applicant’s parents to depart Sudan arose in Khartoum as set out in the Department’s s.91R assessment, and there is no discernible advantage in providing misleading information as to this fact at the time. The Tribunal considers the representative’s submissions on this matter as purely speculative; they are not supported by any evidence of the applicant and the Tribunal gives them no weight.

4. Lack of civil documentation such as birth certificates or identity papers is commonplace in both Sudan and South Sudan, although in the particular circumstances of the applicant he does have access to a copy of his birth certificate. As to the process of applying for nationality, the Regulations also set out that the applicant’s parents or legal guardian should also be present to testify before the issuing authorities, but also allow for a broad range of people who have a nationality certificate to also provide verification including any relative, chief or other person of good standing[3]. The Regulations further state that when there is a lack of sufficient documentary evidence, the relevant authorities will consider a sworn statement from witnesses in lieu of documents.

   [3] A Study of Statelessness in South Sudan 2017, UN High Commissioner for Refugee, 29 May 2018, p.15, 2

5. The Tribunal has considered the information submitted by the representative for the applicant regarding the difficulties in acquiring South Sudanese citizenship. This difficulties particularly arise for women without male relatives, orphaned children, returned refugees and members of some ethnic groups[4]. The applicant is not a member of any cross border ethnic groups, he claims to be of Dinka ethnicity, who are generally recognised, and as set out above he has some identity documents.

   [4] COI Query, European Asylum Support Office dated 9 April 2020, Acquisition of citizenship in South Sudan: whether a person who has ever had a national South Sudanese ID and has never been registered as a national would be eligible for it.

6. Accordingly, by operation of Article 8(1)(a) and (b) of the Nationality Law of 2011, the Tribunal finds that the applicant is able to claim nationality of South Sudan, as his parents were born in the region which is part of South Sudan and he belongs to one of the indigenous ethnic communities of South Sudan. He is not stateless as claimed in his application. Therefore, the applicant’s protection claims will be assessed against South Sudan as the country of reference and receiving country respectively.

7. The Tribunal is also satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country and, therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations under s.36(3).

   Does the absence of a cessation document cancelling the UNHCR refugee designation of the applicant mean that he remains a refugee?

8. In pre-hearing submissions the representative of the applicant has argued that by virtue of the applicant arriving in Australia on a humanitarian Subclass 200 visa in 2004, where he was issued with UN documentation designating him as a refugee, whether the cancellation of this visa under s.501 of the Act constitutes a cessation of his refugee status. Particularly, in the absence of the Australian government issuing a cessation document. This argument was maintained at the hearing, and it is not clear to the Tribunal from post hearing submissions whether it has been abandoned.

9. The applicant has submitted to the Tribunal as authority for their submissions a copy of the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004[5]. As discussed at the hearing, on reviewing the decision the Tribunal does not accept it as an authority for the proposition that having been designated a refugee by the UNHCR that designation remains until there is a cessation of that status under the Convention under Australian law. In fact a thorough reading of the decision provides clear authority for quite the opposite. While it is the position of the UNHCR that a person’s refugee status remains intact until cessation or revocation applies (articles 1C, 1F(a) or (c) of the Convention), this is not the case in Australia. In considering a similar submission in relation to an applicant who was a holder of a temporary protection visa in QAAH, the majority noted that although s.36 of the Act refers to the terms of Convention, this does not mean the whole of it is enacted into Australian law.[6]

   [5] Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53 (12 November 2006) 13

   6 QAAH at 33

10. The court further went on to comment that both s.36 of the Act and Part 1C of the Convention are ‘not concerned with permanent residence in Australia or any other asylum country, or indeed entitlements or residence for any particular period at all’.[7] Furthermore, even if the position in Australian law was not determined by the Act, the court commented that the Articles of the Convention ‘do not purport to define a refugee either for all times or purposes or at all.[8]

    [7] QAAH at 36

    [8] QAAH at 48

11. The position under Australian law is that a visa only exists for the period stated, or until an event occurs, such as provided for in sections 28, 29(3), 67, 68(3), 116 and 501 of the Act.[9] When the visa expires, the holder is to make a fresh application for another visa. As was the case of the applicant in QAAH, that was a protection visa, because otherwise there is not an entitlement to remain in Australia. In these circumstances the relevant criterion for the grant of a protection visa at that time will be whether the applicant is a person to whom Australia has (not, it may be observed, "in the past had, or owed") protection obligations under the Convention[10] (s.36(2) and (4) of the Act). This protection obligation does not apply retrospectively.

    [9] QAAH at 38

    [10] As above

12. As a new application must be made by the person seeking protection, the applicant cannot rely on his previous UNHCR refugee designation. Furthermore, in the applicant’s particular circumstances he was previously granted his humanitarian visa on the basis of claims of his father, as a member of his family unit, and not due to any of his individual claims. Also his father’s claims arose in the context of ongoing civil war in Sudan. The country situation has changed and the applicant’s assessed country of nationality, South Sudan, has now achieved independence. A fresh determination of whether the applicant is entitled to Australia’s protection at the time of the application, is therefore to be made by the Tribunal on review, and he cannot simply rely on any previous visa grants.

    Findings in relation to the applicant’s claims

13. Upon reviewing the evidence the Tribunal found the applicant to be a credible witness. His evidence and that of his witness has largely been consistent. The applicant has not sought to inflate his claims, and it is accepted that South Sudan is a country of which he has limited knowledge and no experience. It is also accepted that he has limited knowledge of his Dinka culture.

14. The Tribunal accepts that the applicant left Sudan as a infant, and that since his arrival in Australia with his family in 2005, neither he nor his family have returned to either Sudan or South Sudan. It is also accepted that the applicant is not aware of any family or other social connections in South Sudan.

15. Having left Sudan during the civil war as an infant it is accepted that the applicant fears harm due to poverty, famine, crime, violence, lack of health care and ongoing conflict in South Sudan.

16. The Tribunal further accepts the consistent evidence that he is Christian and is of Dinka ethnicity and that he can speak and write some rudimentary Dinka and Arabic. It is also accepted that the applicant fears harm from ethnic and tribal violence in South Sudan.

17. The Tribunal also accepted that the applicant has limited work and life experience. He speaks fluent English but has reading and writing deficits. The Tribunal accepts that he did not complete high school, that he was incarcerated at the age of 18 and upon release has been transferred to immigration detention. The Tribunal accepts that the applicant fears that he will be unable to support himself or find employment in South Sudan. It is also accepted that his family lack the resources to provide him with any financial assistance.

18. While the applicant attended events with the Sudanese community in Australia including family barbeques and church the Tribunal does not accept the conclusion of the delegate that from this experience he has a strong sense of cultural identity as a Dinka or as a South Sudanese. The applicant was unable to articulate any particular attribute of the Dinka tribe, other than they were fast runners. He did not know their difference from any other tribe. He also had no knowledge of the politics and history of Sudan/South Sudan. On the evidence, these social events were based around the shared refugee experience in Australia.

19. The assessment of the applicant’s claims is a difficult task for the Tribunal as the applicant has not lived in his assessed country of nationality and he does not have any certainty as to where he would return. He has no family in Juba, the capital where most likely he would enter the country, and similarly has no known family or knowledge of the area from which his parents hail, Aweil in Northern Bahr el Ghazal state. It is reasonable to assume in the absence of connections anywhere else in the country he would remain in the capital, Juba. The Tribunal has therefore based its assessment upon the applicant remaining in Juba.

    Does Australia have protection obligations to the applicant under the refugee criterion in the Act?

20. South Sudan was established in 2011 following protracted conflicts between the northern and southern regions of Sudan. The First Civil War (1955–1972) and the Second Civil War (1983–2005) were rooted in the north’s economic, political and social domination of the south and led to the deaths of more than 1.5 million people.[11] In 2013, widespread violence erupted in South Sudan following the dismissal by President Salva Kiir (a Dinka) of Vice President Riek Machar ( a Nuer) and the entire Council of Ministers after accusing Machar of leading a failed coup. This conflict assumed ethnic dimensions and intensified largely between the Government led by Kiir who was the leader of the Sudan People’s Liberation Movement (SPLM) and the Sudan People’s Liberation Movement-in-Opposition (SPLM-IO) led by Machar.[12] Security forces, opposition forces, armed militia affiliated with both the government and opposition and civilians committed conflict related abuses and violations.[13]

    [11] DFAT Country Information Report – South Sudan, 5 October 2016, at 2.1

    [12] As above at 2.2

    [13] United States Department of State, Country Reports on Human Rights Practices South Sudan,

21. In August 2015, following significant international pressure the Intergovernmental Authority on Development (IGAD) mediated between the Government and the SPLM-IO and signed the Agreement on the Resolution of the Conflict in the Republic of South Sudan. However, in July 2016 violence broke out again, leading to another two years of conflict. At the time of its report in October 2016, DFAT described the humanitarian situation in South Sudan as dire.[14]

    [14] DFAT Country Information Report – South Sudan, 5 October 2016, at 2.6

22. In August 2018 Kiir and Machar entered into a new power-sharing agreement and in September 2018 signed the Revitalized Agreement on the Resolution of the Conflict in the Republic of South Sudan (R-ARCSS), however the implementation of the agreement has been slow. In January 2020, the government, the SPLM-IO, the National Democratic Front and non-signatory groups to the 2018 peace deal, recommitted to a ceasefire. In February 2020, the parties to the R-ARCSS formed a transitional government of unity led by President Kiir, with Machar reinstated as first Vice President and four other vice presidents from opposition groups.[15] Following the signing of the R-ARCSS all armed groups in South Sudan are supposed to be disarmed or unified into the military and police forces[16] this has not transpired. It is estimated that South Sudan has at least 40 different armed groups[17] and they are often divided along ethnic lines.[18]

    [15] 'World Report 2021. Events of 2020', Human Rights Watch (HRW), 13 January 2021, 20210114072851

    [16] CIA World Factbook – South Sudan June 2020, CIA World Factbook. 30 June 2020, p1

    [17] 'Ahead of peace talks, a who’s who in South Sudan’s splintering civil war', Integrated Regional Information Network (IRIN) -United Nations, 12 April 2018, CXBB8A1DA25706

    [18] 46 'South Sudan Oil Consortium Funded Militias Accused of Atrocities, Report Says', The New York Times, 19 September 2019, 20200708121519

23. Generally it is acknowledged that there has been a reduction of levels of violence in South Sudan since the R-ARCSS, however conflict remains and egregious human rights violations continue to be perpetrated by parties to the conflict with near complete impunity.[19] For example in April 2020, fighting resumed in Yei, Lobonok, Mundri, Maridi, and other parts of the Equatoria region, and peace talks restarted in October 2020.[20] Further,  the concern over the implementation of the R-ARCSS, it has given rise to the illegal recruitment drives of new combatants by the warring parties,[21] which has often included children.

    [19] UNHCR Position on Returns to South Sudan – Update II, UNHCR April 2019

    [20] 'World Report 2021. Events of 2020', Human Rights Watch (HRW), 13 January 2021, 20210114072851

    [21] 'Hollow Promises', Small Arms Survey, 01 June 2020, p. 3, 20200706154507

24. In April 2019, The UNHC R continued its previous recommendation that states suspend forcible returns to South Sudan[22]; this position has not changed. Several reports refer to a generally unstable security situation and dire standard of living in South Sudan. For example, the Overseas Security Advisory Council South Sudan 2020 Crime and Safety Report noted poor conditions relating to crime, health facilities and infrastructure in South Sudan, including Juba.[23]

    [22] UNHCR Position on Returns to South Sudan – Update II, UNHCR April 2019

    [23] South Sudan 2020 Crime & Safety Report', Overseas Security Advisory Council (OSAC), 29 April 2020, 20200630135229

25. The peace process in South Sudan is new and fragile, and progress has been further delayed with other natural disasters such as flooding, locust plagues and  the impact of COVID-19. A lack of planning by the government has further given rise to severe food shortages and famine. Given the evolving humanitarian issues, the volatile history and the ongoing recruitment of various armed groups, the government’s inability to unify the army[24], and that several armed groups were not a party to the R-ARCSS,[25] it is uncertain from the country information that it will in fact hold. While the security situation for all citizens of South Sudan remains precarious, the Tribunal accepts that Australia’s protection obligations do not extend to those fleeing generalised violence, internal turmoil, or civil war. In the particular case of the applicant, the Tribunal considers that he has certain characteristics relating to his ethnicity and  imputed political opinion that led the Tribunal to a finding that he has a well-founded fear of persecution were he to be returned to South Sudan.

    [24] World Report 2021. Events of 2020', Human Rights Watch (HRW), 13 January 2021, 20210114072851

    [25] International Crisis Group, A major step towards ending South Sudan’s Civil War, 25 February 2020

26. The Tribunal is satisfied that interethnic conflict continues to take place throughout the South Sudan. The applicant is of the Dinka ethnicity and the Dinka are one of the largest ethnic groups in South Sudan, around 35.8 per cent, comprised of several related ethnic sub-groups.[26] The Dinka are predominantly pastoralists located in the central and northern areas of South Sudan.[27] Numerous sources including DFAT confirm that the Dinka people have long been targeted by a number of opposition groups on the basis of imputed political opinion in favour of President Kiir and the SPLM, and the targeting of Dinka for this reason continues despite the R-ARCSS. Although the Transitional Constitution of the Republic of South Sudan states that all ethnic and cultural communities have the right to freely enjoy and develop their cultures and practice their beliefs and customs, according to the DFAT report South Sudan remains a highly traditional society, founded on familial and genealogical ties where ethnicity is a common cause of societal and official discrimination and violence. [28] DFAT assesses that ethnicity is the most significant determinant of an individual’s risk of experiencing official and societal discrimination and violence in South Sudan, and that this intensified following the outbreak of conflict in December 2013 which intertwined both ethnicity and political opinion.[29]

    [26] DFAT Country information Report -South Sudan, 5 October 2016 at 3.5

    [27] As above at 3.5

    [28] As above at 3.1

    [29] As above at 3.1

1. It is reported by DFAT that official and societal violence linked to an individual’s ethnicity occurs in two distinct ways:

   As a result of the formal conflict between the Government and Sudan People’s Liberation Movement-In-Opposition (SPLM-IO) and due to informal inter-tribal conflict. Tensions between the Dinka and Nuer ethnic groups have been historically common in South Sudan, with relations between them being punctuated by informal inter-tribal conflict, and now direct and open conflict. The dynamics within the Dinka and Nuer ethnic groups, however, are also complex – for example, a number of Nuer sub-ethnic groups remained loyal to the Dinka-linked Government following the outbreak of conflict in December 2013. While no ethnicity is exempt from experiencing official or societal discrimination or violence, DFAT assesses that there are three prominent ethnic groups (Dinka, Nuer and Shilluk) who are most at risk, owing to their active involvement in the conflict between the Government and SPLM-IO. [30]

   [30] As above at 3.2

2. DFAT went on to assess that overall, Dinkas in South Sudan living in conflict affected areas face a high risk of societal discrimination and violence, given the significant ethnic-dimensions of the current conflict as well as their geographic proximity to the conflict. In its report it was further assessed that in Juba, Dinkas face a low risk of being targeted on the basis of their ethnicity because the Dinka-dominated Government had almost unencumbered control over Juba.[31] It is noted that this advice dates back to 2016, prior to the signing of the R-ARCSS, and the power sharing agreement that arose with the formation of the unity government in 2020. There is more recent reporting suggesting that despite a peace deal South Sudan’s contemporary history suggests that conflict could erupt anytime due to the tense and uptight military balance in the capital.Hence, despite the new peace agreement, the country will not be experiencing stability anytime soon.[32]

   [31] As above at 3.7

   [32] South Sudan: Despite new peace deal, stability is a far-cry  Global Risk Insights Scott Houghton, 23 March 2020

3. The US State Department's Country Report for 2020 states that interethnic fighting and violence by government, opposition forces, and armed militias affiliated with the government and the opposition targeting specific ethnic groups resulted in human rights abuses and have continued throughout the year.[33] The Report goes on to state that inflammatory rhetoric – including hate speech – and discriminatory government policies led to a heightened sense of tribal identity, exacerbating interethnic differences. On 9 July 2020, President Kiir acknowledged that intercommunal fighting 'threatens to rip the country apart’.[34] There has been ongoing significant levels of general violence in the Central Equatoria region in which Juba is located. A February 2020 report from the United Nations Security Council explains the situation in Central Equatoria and comments that tensions between the South Sudan People’s Defence Forces and the National Salvation Front (NAS) continued. Tensions within SPLA-IO also affected their participation in the transitional security arrangements and led to violence.[35] A United Nations Human Rights Council report from January 2020 reports that while parts of Central Equatoria State were controlled by elements of the National Salvation Front and the SPLA-IO (pro- Vice President Riek Machar), others remained under the control of government forces. The fragmentation of armed actors in Greater Upper Nile and Central Equatoria regions also contributed to ongoing violence and human rights violations, including conflict related sexual violence.[36] Intercommunal clashes had escalated between January and May 2020 with 415 violent incidents recorded, as compared with the period between January and May 2018, where there were only 129 intercommunal clashes in the same area.[37] On 3 June 2020, South Sudanese forces killed four civilians and wounded seven others in Juba over a land dispute.[38] This was followed by peaceful demonstrations which led to police shooting and killing more with multiple injuries and arrests. In April to May 2020, Human Rights Watch reports that clashes between NAS and South Sudan People’s Defence Forces (SSPDF) in Juba county leading to the displacement of 19,000 people.[39] According to reports to the Security Council in September 2020, in Central Equatoria, the NAS has launched a series of politically motivated attacks, and despite claims that its actions are defensive, civilians and humanitarians are among the casualties of their ambushes.[40]

   [33] Country Reports on Human Rights Practices for 2019 - South Sudan', United States Department of State, 11 March 2020

   [34] 'South Sudan President Admits Inter-Communal Fighting Threatens Country', VOA News, 9 July 2020

   [35] Situation in South Sudan - 26 February 2020', United Nations Security Council (UNSC), 26 February 2020, p.4

   [36] Report of the Commission on Human Rights in South Sudan UN Human Rights Council 31 January 2020', United Nations Human Rights Council, 31 January 2020, p. 8

   [37] Country Reports on Human Rights Practices for 2019 - South Sudan', United States Department of State, 11 March 2020,

   [38] United Nations Human Rights Office of the High Commissioner, Renewed violence and delayed implementation of the peace agreement threaten peace and stability in South Sudan, UN experts note, 14 August 2020

   [39] Human Rights Watch, South Sudan – Events of 2020 World Report 2021: South Sudan | Human Rights Watch (hrw.org)

   [40] United Nations Security Council, September 2020, Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council, >

   On 14 August 2020, the Commission of Human Rights in Sudan noted an escalation of violence in the majority of the regions of South Sudan and remained concerned at the lack of accountability for incidents of intercommunal violence, including an absence of prosecutions. There was reference to armed conflicts being transformed into a ‘series of localised conflicts’ often presented ‘simply as cattle raiding’ but increasingly politicised with many groups operating as organised militias under the control of the main parties to the conflict[41]

   [41] As above

4. The delegate had found that the applicant, having been born outside South Sudan, had no apparent political allegiances and no history that could attract the attention from government security forces. From the country information it is not only the government forces that are responsible for the unstable security situation in South Sudan. Numerous sources including DFAT confirm that the Dinka people have long been targeted by a number of opposition groups on the basis of imputed political opinion in favour of President Kiir and the SPLM, and the targeting of Dinka for this reason continues despite the peace process. A consideration of the various country information sources in 2019, 2020 and 2021 indicates Dinka civilians have historically been targeted for violence by other groups based on imputed political opinion and/or ethnicity. Furthermore, DFAT[42] and other country sources also refer to the failure of state protection for civilians.[43] The Commission on Human Rights in South Sudan has commented that pervasive impunity remains the norm.[44]

   [42] DFAT- Country Information Report, South Sudan, 5 October 2016, comments at 5.2 the governments ability to maintain effective control and provide adequate state protection is weak.

   [43] See for example, United States Department of State, Country Reports on Human Rights Practices South Sudan, 11 March 2020

   [44] United Nations Human Rights Council, Report of the Commission on Human Rights in South Sudan, 13 March 2018

5. The United Nations Human Rights Council in February 2021 referred to the findings by the Commission on Human Rights in South Sudan, that 10 years after independence there are ‘staggering levels of violence’ with more than 75% of the country engulfed in brutal violence.[45] The Report refers to an intensification of attacks against the civilian population along ethnic lines with almost no accountability.[46] The Report states that ‘localised conflict also continued to pose a massive risk to stability in South Sudan, given the lack of accountability for gross human rights violations and abuses and violations of international humanitarian law. The risk to stability is compounded by weak State structures, including at the subnational level, predatory elites and their competition for political power and economic resources, as well as the failure to manage ethnic divisions and plurality’.

   [45] United Nations Human Rights Council, Despite renewed political commitment, staggering levels of violence continued across South Sudan for the second successive year, UN experts note, 19 February 2021

   [46] United Nations Human Rights Council, Despite renewed political commitment, staggering levels of violence continued across South Sudan for the second successive year, UN experts note, 19 February 2021

6. Finally, in the context of South Sudan’s volatile history and inter-ethnic conflict, the precarious nature of the peace agreement and the instability being experienced, the Tribunal has taken into consideration the particular vulnerabilities of this applicant which may exacerbate the chance of him being targeted for his ethnicity or imputed political opinion. In AGA16 v MIBP [2018] FCA 628, the Court accepted the appellant’s proposition (undisputed by the Minister) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities.

7. The applicant would be returning to South Sudan without a place to live, with no work, and without family and community support. He has no familiarity with the country, having a lack of familial and genealogical connections within Juba or South Sudan. He has no knowledge of any of the various Dinka tribal sub-groups such as Abiliang, Agar, Aliab, Atwot, Bor, Ciec, Gok, Hol, Malual, Nyarweng, Padang, Rek, Ruweng, Twic-JS and Twic-WS. While Dinka males are often distinguishable by facial scarification,[47] the applicant has no markings. His Dinka language skills are semi-functional. His limited language skills together with his limited knowledge of his tribal or cultural heritage, set the applicant apart. Considering the time that he has been in Australia, it is accepted that the applicant speaks with a western accent, lacks cultural assimilation and it is accepted that there is a risk that without familial assistance or the knowledge of anyone in South Sudan he will not be accepted or fully assimilated into the Dinka community, such that he would be afforded any community protection. His family in Australia are not in a position to provide him with economic support. It is likely that he would face extreme difficulties given the social and economic situation in South Sudan. There are several reports of a deteriorating humanitarian situation with flooding, extreme poverty and the COVID-19 pandemic,[48] and the World Food Program reported that 6.48 million people in South Sudan faced acute food insecurity.[49] In the circumstances due to these particular characteristics there is a greater risk of him experiencing societal discrimination and violence as a result of his disassociation with the Dinka community in South Sudan and his lack of cultural assimilation.

   [47] DFAT Country Information Report- South Sudan, 5 October 2016 at 3.5

   [48] United Nations Security Council, September 2020, Despite Ceasefire Agreement in South Sudan, Intercommunal Conflicts Increase, Humanitarian Needs Grow, Civil Society Representative Tells Security Council, World Food Programme, South Sudan Situation Report, 12 June 2020

The Tribunal also is satisfied that the applicant’s chance of being targeted for violence by rival ethnic groups is further exacerbated by his circumstances. He has no job or resources, so that his accommodation is likely to be basic, and he will have little protection as he has no family or networks and has little understanding of how to avoid harm, given his unfamiliarity with the country. In addition to this, there are almost no social services from which the applicant could seek any support. The Tribunal further has concerns from the country information that not only could he be subject to violence, but that he may also be vulnerable to forced recruitment given that he will not have a job or support networks and because he is relatively young. The United States Department of State Report on Human Rights Practices for 2021 has commented on forced recruitment of child soldiers as follows:

Following the outbreak of conflict in 2013, forced conscription by government forces, as well as recruitment and use of child soldiers by both government and antigovernment forces, increased. During the year, the cease-fire largely held, reducing the forced or voluntary recruitment of soldiers, including child soldiers. Nevertheless, there were reports these forces continued abducting and recruiting child soldiers. In 2019 the UN verified 270 grave violations involving 250 children by the SPLA‑IO, government security forces (including the, SSNPS and NSS), the South Sudan United Front/Army, the National Salvation Front, the South Sudan Opposition Alliance (SSOA), and the National Democratic Movement.[50]

[50] United States Department of State, Country Reports on Human Rights Practices South Sudan 2020, 30 March 2021

The 2021 European Asylum Support Office report has commented that there is ongoing recent forced recruitment of both children and adults:

Throughout 2020, the issue of forced recruitment was also highlighted. In February 2020, UNMISS documented ‘a surge in the forced military recruitment of civilians and alleged former fighters by the major warring parties and their allies’. In April 2020, the UN Panel of Experts pointed out that the practice of forced recruitment of children and adults in the country ‘remained unabated’, as ‘both SSPDF and SPLA-IO have targeted children and young people for recruitment’. The same source described the ‘abduction campaigns’ of the SSPDF and SPLA-IO, where ‘pickup trucks with armed and unarmed men, some in uniform, arrived at villages during the day, stopped children and young people and forced them into the trucks’. In its December 2020 report, the UN highlighted the ‘alarming increase in the abduction of civilians [..] primarily for the purpose of forced military recruitment’ in Central Equatoria’.[51]

[51] European Asylum Support Office, COI Query Response – South Sudan: Security Situation, 2021_02_Q1_COI_South_Sudan_Security_Situation.pdf (europa.eu)

Overall, were the applicant to go to South Sudan, the Tribunal is satisfied that there is a real chance of persecution including violence based on the available country information in relation to the ethnic tensions between the Dinka Bor, Lou Nuer and Murle communities in and around Juba. Furthermore, there is also a risk from supporters of Riek Machar, of the SPLM-IO who are Nuer, given the fragile peace process and the ongoing instability as discussed above and the unabated recruitment of male youths. The country information sources are consistent in concluding that ethnicity and imputed political opinion are intertwined in South Sudan, further there is ongoing targeting of civilians for this reason. Considering the particular vulnerabilities of the applicant the Tribunal is further satisfied that the risk is substantial, as opposed to remote or far-fetched, and the harm that he would suffer would be deliberate rather than random and the targeting of the applicant would be for reasons of his ethnicity and imputed political opinion.  

Would the persecution be present in all areas of the country?

As discussed above the applicant has never lived in South Sudan, and it was considered probable that he would remain in Juba as this would be likely where he would enter the country, it is a capital city with some infrastructure. Nevertheless the Tribunal has also considered whether it would be reasonable for the applicant to relocate to a region within the country free of the risk of persecution. Given the strong tribal and ethnic dimensions of life and the conflict in South Sudan, and the fact that the applicant’s parents were born in Aweil, in Northern Bahr el Ghazal state, this may be considered the home area of his parents. The Tribunal has considered whether the applicant may reasonably consider relocating to Northern Bahr el Ghazal state to seek some community connection as people may know his extended family and he may find some community support amongst other Dinka. However in the Northern Bahr el Ghazal state, upon examination by the Tribunal, there has been reported significant intercommunal and ethnic conflict some of which has targeted the Dinka, and considerable population displacement. There is considered to be a significant risk of ethnic violence in the reasonably foreseeable future. In its 2020 report, the European Asylum Support Office discussed the following:

In late April 2020, a major incident in Aweil East, involving SSPDF elements, resulted in the killing of 12 Misseriya civilians, including 5 children. The Reconstituted Joint Monitoring and Evaluation Commission (RJMEC) reported that ‘minor clashes’ between the SSPDF and the SPLA-IO forces in Northern Bahr El Ghazal, between 1st June and 30 September 2020, led to ‘scores of fatalities and numerous casualties on both sides, as well as severe disruption and displacement to the civilian population’. According to the Commission the clashes could be attributed to the confusion caused during the civilian disarmament campaign launched by the SSPDF. As of December 2020, populations in Aweil South county of Northern Bahr el-Ghazal, began to face ‘catastrophe’ conditions. The number of IDPs in Northern Bahr el-Ghazal state was approx. 65 000 as of January 2021328 , compared to the 127 035 IDPs recorded in February 2020.

The Tribunal is not satisfied that Northern Bahr el Ghazal state can be accessed safely or easily by the applicant. There are various reports of road attacks by armed gunmen, the United Nations Security Council reported that between 29 May and 27 August 2019, there was an increase in road attacks, as well as a presence of large numbers of armed gunmen.[52] In the Central Equatorial region in which Juba is situated, the UN peacekeeping mission was reported as taking steps to establish temporary bases in an attempt to deter violence in September 2020 after a reported surge in armed attacks on civilians and humanitarian convoys[53]. The Tribunal also considers the applicant would be returning to an unfamiliar and uncertain environment and without any emotional or other support it would be extremely difficult for him to make his way in another area of the country. Furthermore, given ongoing conflict in this area that has a political and ethnic element. The factors that the applicant has raised that characterise him with particular vulnerabilities such as his limited language skills, limited knowledge of his tribal or cultural heritage, his lack of familial assistance, limited work experience, lack of accommodation or employment opportunities would persist were he to relocate to this areas. The Tribunal is further satisfied that Northern Bahr el Ghazal is so ‘unsafe and so inhospitable that a person would be exposed to a likely inability to find food, shelter or work’.[54] The conflict also stretches across most of the country, and there is widespread poverty, extreme food shortages, lack of shelter and lack of access to medical services in all areas of the country, as referred to in the numerous country sources cited in this decision.

[52] United Nations Security Council (UNSC), 10 September 2019 'Situation in South Sudan',

[53] UNMISS establishes temporary base to deter road ambushes in Central Equatoria | UNMISS (unmissions.org), 2 September 2020

[54] FCS17 v MHA [2020] FCAFC 68 per White and Colvin JJ with general agreement from Allsop CJ

1. The Tribunal is satisfied therefore that the real chance of persecution relates to all areas of South Sudan.

   Safe third country protection

2. The qualification contained in s.36(3) of the Act provides that Australia is taken not to have protection obligations to non-citizens who have not taken all possible steps to avail themselves of a right to enter and reside in, whether temporarily or permanently, any country apart from Australia, including countries of which the non-citizen is a national. There are exceptions to this qualification which operate, broadly, where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.[55]

   [55] Migration Act Sections 36(4)–(5A).

3. The Tribunal has therefore gone on to consider whether the applicant has the right to avail himself to enter and reside in a third country. As discussed above, it is considered that the applicant had lost any Sudanese citizenship, under the Sudanese Nationality Act 1994 when he acquired ‘de jure or de facto” the nationality of South Sudan[56] through his parents.

   [56] The Sudanese Nationality Act 1994', Citizenship Rights in Africa Initiative, 2018 amendments signed into law 30 December 2018, s.10(2) page 14, 

4. South Sudan is also a member of the East African Community (EAC) which is a regional intergovernmental organisation and customs union that also includes Burundi, Kenya, Rwanda, Tanzania and Uganda. Freedom of movement between the EAC countries is one of the rights associated with the union.[57] Article 7(1) of the Protocol provides that Partner States will guarantee the ‘free movement of persons who are citizens of the other Partner States, within their territories without a visa’ while article 7(5) indicates that ‘the free movement of persons shall be subject to limitations imposed by the host Partner State on grounds of public policy, public security or public health’. Article 7(8) of the Protocol provides that the ‘movement of refugees within the community shall be governed by the relevant international conventions’. The Regulations permit five categories of people, visitors, people seeking medical treatment, persons in transit, students and people entering for other lawful purposes but not work. EAC citizens seeking to work must apply to do so. A person applying for this permit must have a valid work and residence permit before they will be permitted to work.

   [57] East African Community website, Common Market (eac.int)

5. According to information from the EAC, possession of a valid passport is required for an EAC citizen to enter another member state.[58] Burundi requires that a resident of South Sudan have a valid passport with at least six months’ validity.[59] Rwanda requires a ‘genuine acceptable travel document’.[60] Kenya and Tanzania require South Sudanese citizens to have a visa.[61]

   [58] See the East African Community website, ‘Travelling in East Africa’ webpage, ; of the Republic of Burundi, Visa Services – Exemptions, Washington DC, 2020

   [60] Embassy of the Republic of Rwanda, Visas – VP-1, 2020

   [61] Embassy of the Republic of Kenya, Kenya – visas not required Kenya, Washington DC, 2020; United Republic of Tanzania, Immigrations (Visa) Regulations, 2016

Three of the member states, Uganda, Kenya and Rwanda, currently allow citizens of these three countries to enter their countries on the basis of holding a national ID card (or voter card in the case of Ugandans who do not yet have national ID cards).[62] While it was planned to roll out the ID use to all Partner States in the EAC, the Tribunal was unable to find information that indicates it has been extended to South Sudanese nationals to date.

[62] See e.g. The New Times, EAC Citizens thrilled to use IDs at border, 2 January 2014, and New Vision, The Experience of Cross Border Travel using National ID, 11 January 2017,

Furthermore, a report dated 4 July 2020 states that Burundi and South Sudan were reported to be at risk of being expelled from the EAC due to their respective failures to pay requisite annual remittances to the EAC.[63] A further report published several days later suggests that the EAC was considering their suspension from the EAC.[64] Finally, movement between countries is also currently affected by the COVID-19 pandemic due to border closures. Some countries have closed their border entirely and it is difficult to predict when this will change.[65]

[63] ‘South Sudan, Burundi face expulsion from regional bloc for defaulting annual remittances’, China Global Television Network, 4 July 2020

[64] ‘Clarification of issues reported in the East African Newspaper – 4-10 July 2020 Edition, East African Community, 7 July 2020

[65] Amnesty International, East Africa: People seeking safety are trapped at borders due to COVID-19 measures, 22 June 2020

The applicant does not have a current South Sudanese passport, which would allow him to enter other EAC countries. He is therefore unable to comply with the requirements for entry to an EAC member state and cannot be said to have a right to enter and reside in an EAC member state, in the sense that there is an existing right.[66] In addition to this, there is the possibility that South Sudan will be suspended from the EAC, and current border closures due to the COVID-19 pandemic. Taking all these matters into consideration the Tribunal is not satisfied that the applicant has a right to enter and reside in a third country and finds that s.36(3) does not apply.

[66] Suntharajah v MIMA [2001] FCA 1391

For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

DECISION

The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Penelope Hunter
Member

ATTACHMENT - Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country, in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

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36     Protection visas – criteria provided for by this Act

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(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

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